Bangalore District Court
However vs Beyond All Reasonable Doubts on 21 February, 2022
1 CC.16847/2017 (J)
IN THE COURT OF THE XV ADDL CHIEF METROPOLITAN MAGISTRATE
AT BANGALORE CITY.
Dated this the 21th Day of February2022
Present: Lokesh Dhanapal Havale. B.A.L.L.B.,
XV Addl.C.M.M., Bangalore.
Judgment U/s.355 of the Cr.P.C. 1973.
1.Sl.No.of the case CC.No.16874/2017
2.Name of the Complainant: Priyanka Sadasivan,
Aged about 34 years,
D/o.Lt. Colonel Sadasivan K.A.,
R/at Flat No.B2, Gaurav Enclave,
KHB Main Road,
Behind Pushpanjali Theatre,
33/14, R.T.Nagar Post,
Bangalore560 032.
3.Name of the accused: Mr.Balaji Mohan,
S/o.Mohan Murugesh,
Aged about 28 years,
R/a No.7, 5th Cross,
Kanakadasa Layout,
Lingarajapuram,
Bangalore560 084.
4.The offence complained of : U/s.138 of Negotiable Instruments
Act.
5.Plea of the accused: Pleaded not guilty.
6.Final Order: Acting U/s.255(2) Cr.P.C., accused is
Convicted.
7.Date of final Order 21.02.2022.
***
2 CC.16847/2017 (J)
This complaint is filed U/Sec.200 of Cr.P.C. against the accused for the
offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881.
2. The facts of the complaint in brief are as under:
The accused is known to her since 2015 and he was a friend and
colleague. The accused started the business in the name of DrWheelz Auto
Services Pvt. Ltd. and he offered her the role of C.O.O. (Chief Operating
Officer) in the company. She joined the company after quitting her full time
freelancer job. When the things didn't go well, the accused approached her
for financial assistance of Rs.9,62,000/ for his business. She paid
Rs.4,79,000/ by applying the personal loan in her name in HSBC bank,
M.G. Road branch, Bengaluru and Rs.4,83,000/ was paid by way of NEFT
and also by way of cash on various occasions. The accused assured her to
repay the amount within 6 months. After expiry of the said period, the
accused did not pay the amount. She demanded for the payment of the said
amount and the accused went on postponing it. She used to look after the
business as C.O.O. and the post was offered to her without formal letter
and monthly payouts of any kind. The accused being the C.E.O. of the
company did not take care of the business and the burden was on her. She
used to pay the workers and the accused was abstaining from rolling out
salaries on the dedicated date. She did not receive any salary from the
beginning of her joining the company. She demanded the repayment of
loan and the accused issued cheque No.250892 dated 15.03.2017 for
Rs.5,58,000/ drawn on SBI, Kacharakanhalli branch, Bengaluru in her
favour towards the discharge of their legal liability. She presented the
cheque for encashment through her banker Canara Bank, R.T.Nagar
Branch, Bengaluru on 15.03.2017. It was dishonoured and returned with
shara "Funds Insufficient" on 24.03.2017. She intimated the accused about
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the dishonour of cheque but he did not respond properly. Later the accused
apologized and requested her to represent the cheque in the month of
April. She again presented the cheque for encashment through her banker
Canara Bank, R.T.Nagar Branch, Bengaluru. It was dishonoured and
returned with shara "Funds Insufficient" on 26.04.2017. She issued legal
notice dated 09.05.2017 to the accused through RPAD. The postal cover
returned unserved on 23.05.2017 with shara "Not Claimed". Thereafter the
accused did not pay the loan amount within 15 days. Hence she prayed to
punish the accused and compensate her.
3. After the institution of the complaint, cognizance was taken
and the case was registered as PCR No.1069/2019. The sworn statement of
the complainant was recorded and on the basis of sworn statement and
other materials on hand, the criminal case was registered against the
accused and summons was issued to him. In response to the service of
summons, the accused appeared through his learned counsel and got
enlarged on bail. The prosecution papers supplied to the accused and the
substance of accusation for the offence punishable U/s.138 of Negotiable
Instruments Act was read over to the accused. He pleaded not guilty and
claimed to be tried.
4. During trial the complainant examined as PW1 and got
marked Ex.P.1 to P.10. The statement of the accused U/s. 313 of Cr.P.C.
was recorded. The accused lead the defence evidence. He examined himself
as DW1 and got marked Ex.D.1 to D.14. He also got examined a witness on
his behalf as DW.2.
4 CC.16847/2017 (J)
5. I have heard the argument of both learned counsels and
perused the entire materials. The following points would arise for my
consideration.
1. Whether the complainant proves that the
accused issued the cheque No.250892 dated
15.03.2017 for Rs.5,58,000/ drawn on SBI,
Kacharakanhalli branch, Bengaluru in her favour
towards the discharge of legally enforceable
debt/liability and on its presentation for
encashment, it was dishonored with an
endorsement of "Funds Insufficient" in the
account maintained by the accused and the
accused have not paid the amount even after 15
days from the date of service of notice on them
and thereby accused committed an offence
punishable U/Sec.138 of N.I. Act, 1881 ?
2. Whether the accused rebuts the presumption
U/s.139 of N.I.Act?
3. What order?
6. My answers to the above points are as under.
Point No.1 : In the Affirmative
Point No.2 : In the Negative
Point No.3 : As per final order for the following:
REASONS
7. Point No.1 & 2: The points are taken together for discussion to
avoid repetition of facts and evidence. At this juncture it is necessary to
discuss the provisions under Section 138, 118(a), 139 and 141 of the N.I.
Act., 1881 and the said provisions are extracted and they read as under;
5 CC.16847/2017 (J)
138. Dishonour of cheque for insufficiency, etc., of
funds in the account - Where any cheque drawn by a
person on an account maintained by him with a banker
for payment of any amount of money to another person
from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing
to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of this
Act, be punished with imprisonment for a term which may
be extended to two years, or with fine which may extend
to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless:
(a) the cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, makes demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque,
within thirty days of the receipt of information by
6 CC.16847/2017 (J)
him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or as the case may be, to the holder in due course
of the cheque within fifteen days of the receipt of
the said notice.
Explanation: For the purposes of this
section, "debt or other liability" means a legally
enforceable debt or other liability.
118. Presumptions as to negotiable instruments. -
Until the contrary is proved, the following presumptions
shall be made;
(a) of consideration - that every negotiable
instrument was made or drawn for consideration,
and that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration;
(b) as to date: that every Negotiable Instrument
bearing date was made or drawn on such date;
139. Presumption in favour of holder. It shall be
presumed, unless the contrary is proved, that the holder of
a cheque received the cheque of the nature referred to in
section 138 for the discharge, in whole or in part, of any
debt or other liability.
7 CC.16847/2017 (J)
8. On plain perusal of the provisions under Section 118(a) and
139 of the N.I.Act., as extracted herein above, it can be seen that initially
the presumptions constituted under these two provisions favour the
complainant. However, it is open to an accused to raise a defence to rebut
the statutory presumptions. An accused can raise a defence, wherein the
existence of legally enforceable debt or liability can be contested.
9. It is also well established that an accused for discharging the
burden of proof placed upon him under a statute need not examine himself.
He may discharge his burden on the basis of the materials already brought
on record. An accused has constitutional rights to maintain silence.
Standard of proof on part of the accused and that of the prosecution in a
Criminal case is different. The prosecution must prove the guilt of an
accused beyond all reasonable doubts, the standard of proof so as to prove
a defence on the part of an accused is "Preponderance of probabilities".
10. Under the light of above extracted provisions of the Act, I have
perused the oral and documentary evidence on record. In order to prove
her case the complainant examined herself as PW.1 and got marked Ex.P.1
to P.10. Ex.P.1 is the cheque No.250892 dated 15.03.2017 for
Rs.5,58,000/ drawn on SBI, Kacharakanhalli branch, Bengaluru and
Ex.P.1(a) is the signature of the accused on the cheque. Ex.P.2 is the Bank
endorsement dated 26.04.2017, which was issued with a shara "Funds
Insufficient". Ex.P.3 is the Postal receipt for having sent the statutory notice
to the accused through registered post. Ex.P.4 is the Postal Envelope
returned with shara "Not Claimed". Ex.P.5 is the office copy of the statutory
notice dated 09.05.2017.
8 CC.16847/2017 (J)
11. Ex.P.6 is the Bank statement of the complainant from
01.03.2016 to 02.06.2017 pertaining to her bank account in the Canara
Bank. It discloses that she transferred Rs.4,06,850/ on 26.04.2016 and
Rs.60,000/ on 20.05.2016 to the accused and Rs.1,00,000/ to the
DrWheelz company on 05.10.2016. It is also pertinent to note that an
amount of Rs.24,000/ was transferred from the account of DrWheelz
company to the complainant on 18.04.2017. ExP.8 is the list of documents
pertaining to the loan taken by the complainant in HSBC bank comprising
of documents viz. On Demand Promissory Note, loan agreement and ECS
form. They disclose that the complainant obtained the personal loan of
Rs.4,76,000/ from HSBC bank. The EMI of the loan is Rs.23,649/. The
bank statement at ExP.6 also discloses the deduction of EMI of loan from
her bank account. These documents have been produced to show that the
complainant is having financial capacity and there was transaction between
the complainant and the accused. ExP.7 is the certified copy of FIR in
Cr.No.389/2019 dated 07.09.2017. It discloses that the complainant filed
the police complaint against the accused and the FIR was registered against
him for the offences punishable U/ss. 341, 504 and 323 of IPC. The
incident took place on 20.02.2017 at 4 pm but while the police mentioning
the contents at para 10 mentioned the date of incident as 20.07.2017. It is
alleged that when she went to the office of the accused on 20.02.2017 at
about 4 pm to demand the repayment of Rs.9,62,000/. The cheques issued
by the accused got bounced and the accused restrained her, abused her in
filthy language and assaulted her with hands for demanding the repayment
of amount. ExP.9 is the the certified copy of the Appeal Memorandum
dated 04.07.2018 filed by the accused before the Hon'ble CCH60,
Bengaluru in Crl.A.No.1210/2018. It discloses that the accused showed his
address as No.7, 5th Cross, Kanakadasa layout, Lingarajapuram, Bengaluru.
9 CC.16847/2017 (J)
It is produced to show that the address of the accused in the notice is
correct. ExP.10 is the certified copy of the judgment in CC.No.20291/2017
passed by Hon'ble XXI ACMM, Bengaluru. It discloses that the accused
being the director of DrWheelz company issued two cheques in favour of
complainant towards discharge of liability of Rs.9,62,000/ loan amount
and Rs.7,12,000/ arrears of salary. The cheques belong to the company.
Though the Court comes to the conclusion that the accused is liable to pay
the amount to the complainant and the accused failed to rebut the
presumption U/s.139 of N.I.Act, it acquitted the accused on the ground that
the drawer of the cheque is company and no notice was issued to the
company nor it was arrayed as accused.
12. I have perused the exhibits on which the complainant has
placed her reliance. On perusal of the exhibits, it is clear that the cheque at
Ex.P.1 bearing No.250892 dated 15.03.2017 for Rs.5,58,000/ drawn on
SBI, Kacharakanhalli branch, Bengaluru was presented through the Bank
within their validity for encashment and the Bank issued endorsements as
per Ex.P.2 on 26.04.2017 with sharas "Funds Insufficient". The complainant
issued statutory notice as per Ex.P.5 on 09.05.2017 within time from the
date of receipt of Bank Memo. The notice was not served on the accused.
The postal cover returned with shara "Not Claimed" on 23.05.2017 as per
Ex.P.4. The accused disputed the service of notice.
In the case of Fakirappa Vs. Siddalingappa reported in 2002
Crl.L.J. 1926 (KAR), the Hon'ble High Court of Karnataka held that since
the mode of service is not prescribed by law, it can be sent either by registered
post or under certificate of posting or otherwise. The only requirement for
service of demand notice is that, the notice should have been sent to the correct
10 CC.16847/2017 (J)
address of the drawer. The expressions 'left, not known', 'not available in the
house', 'house locked', 'shop closed' etc., are all synonyms. Therefore, if the
address of the drawer proved to be correct, even if the notice is returned with
above remarks, then the notice is deemed to have been served on the drawer.
13. It is the defence of the accused that the notice was not served
on him. The counsel for the accused argued that the complainant
intentionally sent the notice to wrong address. The counsel for the
complainant argued that the notice was sent to the correct address and it
was returned as "Not Claimed". The accused stated his address as Flat
No.301, MAQ Residency, 39th Cross, HRBR Layout, Bengaluru42 in his
examination in chief. He did not produce any document to show that he has
been residing at the said address. It was not suggested to PW.1 that the
accused was residing at the said address. On the other hand the accused
admitted that the address mentioned in the notice and the address
mentioned in the Appeal Memorandum at ExP.9 are one and the same. The
accused stated that the address mentioned in the notice is his previous
address and he left the said address 5 years ago. The complainant knew his
present address but she intentionally sent the notice to the old address. He
did not produce any document for change of address. The notice is dated
09.05.2017 and the ExP.9 is dated 04.07.2018. Both the addresses are one
and the same. It is pertinent to note that the counsel for the accused did not
cross examine PW.1 in respect of non service of notice. Mere suggestions
are not sufficient. The admission of DW.1 and ExP.5 and 9 leads to draw
presumption as per Section 27 of General Clauses Act, which states that the
notice sent through post shall be deemed to be served, if it is properly
addressed to a person to whom it is sent. The notice sent to the accused
returned unserved with shara 'Not Claimed' as per ExP.4. Therefore, in
11 CC.16847/2017 (J)
view of the admission of the address by the accused in his cross
examination, the notice at Ex.P.5 is deemed to have been served on him as
per Ex.P.4. Even otherwise as per the Judgment of the Hon'ble Supreme
Court of India in the case of C.C. Alavi Haji Vs.Palapetty Muhammed and
another reported in (2007) 6 SCC 555, wherein it has been held by the
Hon'ble Supreme Court of India para No.17 as under;
17. It is also to be borne in mind that the
requirement of giving of notice is a clear departure from the
rule of Criminal Law, where there is no stipulation of
giving of a notice before filing a complaint. Any drawer who
claims that he did not receive the notice sent by post, can,
within 15 days of receipt of summons from the court
in respect of the complaint U/s.138 of the Act, make
payment of the cheque amount and submit to the
Court that he had made payment within 15 days of receipt
of summons (by receiving a copy of complaint with the
summons) and, therefore, the complaint is liable to be
rejected. A person who does not pay within 15 days of
receipt of the summons from the Court along with the
copy of the complaint u/s.138 of the Act, cannot
obviously contend that there was no proper service of notice
as required u/s.138, by ignoring statutory presumption to
the contrary u/s.27 of the G.C. Act and Section 114 of the
Evidence Act. In our view, any other interpretation of the
proviso would defeat the very object of the legislation. As
observed in Bhaskaran's case (supra), if the 'giving of
notice' in the context of Clause (b) of the proviso was the
12 CC.16847/2017 (J)
same as the 'receipt of notice' a trickster cheque
drawer would get the premium to avoid receiving the notice
by adopting different strategies and escape from legal
consequences of Section 138 of the Act.
14. In a nutshell it can be said that the statutory notice is an
opportunity given to the accused to make payment and avoid the
consequences of 138 of N.I.Act. In the case on hand, the summons was
issued to accused. The summons was duly served on accused as per order
sheet dated 23.10.2017. He appeared before the Court and contested the
case by taking all probable defences. Therefore he cannot take the shelter
of statutory requirement of service of notice to avoid the consequences of
Section 138 of N.I.Act. The complaint was filed on 14.06.2017, which is
within limitation. Therefore the documents on record clearly show that the
complainant has complied the ingredients of Section 138(a) to (c) of the
N.I.Act. Therefore the presumptions U/s.118 and 139 of the N.I.Act arise in
favour of the complainant. The presumptions are rebuttable and the burden
is on the accused to rebut the presumptions. Once the issuance of cheque is
proved, the presumption arises in respect of the fact that the cheque was
issued for legally enforceable debt/ liability. The burden is on the accused
to rebut the presumption by raising probable defences and proving it
relying on the evidence of the complainant or by leading his direct
evidence.
15. It is admitted fact that the accused is the Managing Director of
the DrWheelz Auto Services Pvt. Ltd. He was running the business. It is also
admitted fact that the cheque belongs to his personal account and it bears
13 CC.16847/2017 (J)
his signature. The evidence shows that the accused and complainant are
known to each other. The counsel for the complainant argued that the
complainant has complied all the ingredients of Section 138 of N.I.Act. The
issuance of cheque and the signature are not disputed. The presumption
U/s.139 of N.I.Act operates in favour of the complainant. On the other
hand, the counsel for the accused argued that the accused had not
borrowed loan from the complainant as alleged in the complaint. The
cheque in question was not issued in favour of the complainant and there is
no legally enforceable debt or liability.
The Hon'ble Supreme Court of India in the case of Rangappa Vs.
Mohan reported in 2011 (11) SCC 441 held that the presumption
mandated by Section 139 of N.I.Act does indeed include the existence of legally
enforceable debt or liability. It is rebuttable presumption and it is open to the
accused to raise a defence wherein the existence of legally enforceable debt or
liability can be contested. However there can be no doubt that there is an
initial presumption which favours the complainant. Section 139 of the Act is
an example of reverse onus clause that has been included in furtherance of the
legislative objective of improving the credibility of negotiable instruments.
Therefore the as per the presumption U/s139 of N.I.Act, if the cheque and
signature are admitted then it shall be presumed that there is legally
enforceable debt.
16. It is the specific defence of the accused that he was running
business through company DrWheels Auto Services Pvt. Ltd. He was the
Director of the said company. The activities being done in the company are
servicing and repairing of cars, buying and selling of goods vehicles and
14 CC.16847/2017 (J)
lifting of loan defaulting vehicles. The complainant was not appointed for
any of the activities of the company. She used to work as commission agent.
She used to bring buyers for buying goods cars and also referring customers
for service and repair and used to claim commission. She introduced one
Afuk in April 2016 for buying BMW car. She made payment of
Rs.4,06,850/ to my personal account. She paid remaining amount of
Rs.60,000/ in May 2016. She referred her father's Maruthi Wagnor car for
repairing and reconditioning. She also referred 2 other cars for repairing.
She paid Rs.10,000/ and Rs.14,000/ for the said repairs. She used to
receive the commission by way of cash.
17. It is also the specific defence of the accused that the friend of
complainant by name Sathyabhama, owner of Sathya Travels, situated at
Ramamurthinagar, defaulted loans in respect of her 4 cars. Their company
boys lifted the cars and handed over them to I Tune Technologies Pvt. Ltd.,
which is the finance company. Thereafter the said Sathyabhama lodged
complaint against him and his company in Ramamurthinagar P.S. The P.S.I
of Ramamurthinagar P.S. threatened him to return the cars to
Sathyabhama. He told them to enquire with the I Tune Technologies Pvt.
Ltd. and at that time Sathyabhama took 3 security cheques in the presence
of P.S.I of Ramamurthinagar P.S. Out of which one cheque is pertaining to
his personal account and other two cheques are pertaining to the company
DrWheels Auto Services Pvt. Ltd. The cheques are signed blank cheques.
The I Tune Technologies Pvt. Ltd. was not willing to return the vehicles
unless total outstanding loan amounts were settled. He told it to
Sathyabhama. She got angry and due to vengeance, she misused the
cheques in collusion with the complainant in this case. The complainant
filed two cases against him. The another case is pending before the Hon'ble
15 CC.16847/2017 (J)
XXI ACMM, Benglauru. He was acquitted in the case before the Hon'ble XXI
ACMM, Bengaluru. He didn't take any loan from the complainant; he didn't
issue any cheques in favour of her and as such he is not liable to pay any
amount.
18. In order to prove his case accused examined himself as DW.1
and got marked ExD.1 to 14. ExD.1 is the certified copy of the complaint in
CC.No.20291/2017 filed by the complainant against the accused for
dishonor of two cheques issued by the accused on behalf of the company
DrWheelz Auto Service Pvt. Ltd. The complaint averments are same as that
of this case. The loan amount of Rs.9,62,000/ is averred in the said
complaint. The additional fact averred in the said complaint is that the
accused company DrWheelz Auto services Pvt Ltd did not pay salary to her
since inception, which is amounting to Rs.7,12,000/. The total liability
averred is 16,74,000/. The cheques are bearing No.s 070407 and 070408
dated 15.03.2017 for an amount of Rs.5,58,000/ each drawn on SBI,
Kachakaranahalli branch, Bengaluru. ExD.2 is certified copy of the alleged
visiting card of the complainant. It discloses that the complainant is Used
Car Consultant in respect of buying and selling of multi branded used cars.
ExD.3 is the certified copy of the bank statement pertaining to the company
of the accused in SBI bank.
19. ExD.2 is the certified copy of the alleged visiting card of the
complainant. It shows that she is old cars consultant. ExD.4 to 6 are the
certified copies of the tax invoices. ExD.4 is the tax invoice dated
29.09.2016. It discloses that the complainant left vehicle of her father with
the accused company for repair and the bill amount is Rs.1,00,161/.
ExD.13 is the certified copy of the vehicle particulars 'B' Extract issued by
16 CC.16847/2017 (J)
Asst. RTO, Bengaluru North. It discloses that the Maruti Wagon R bearing
No.KA04 MK7043 belongs to father of the complainant. ExD.5 and 6 are
invoices pertaining to car repairs of other persons alleged to have been
referred by complainant. ExD.5 is the tax invoice dated 09.01.2017. It
shows car repair of one Guru Raj with bill amount of Rs.16,102/. ExD.6 is
the tax invoice dated 15.01.2017. It shows car repair of one Vikranth with
bill amount of Rs.10,819/. ExD.7 is the letter dated 24.05.2018 issued by
Akhila Karthi, the owner of BMW3200 car bearing No.KA53 M3535, at
the request of the accused. She mentioned that she entrusted accused to
sell her car and the accused credited Rs.4,00,000/ on 27.04.2016 and
Rs.50,000/ on 21.05.2016 after selling the said car.
20. ExD.8 is the certified copy of the complaint filed by the
complainant before the R.T.Nagar P.S. on 22.07.2017. It is alleged in the
complaint that when she asked the accused to repay the loan amount of
Rs.9,62,000/ on 20.02.2017, he restrained her, abused her in filthy
language and assaulted her in the office premises of the accused company.
ExD.9 is the certified copy of FIR in Cr.No.214/2017 dated 22.07.2017.
Though the incident alleged to have taken place on 20.02.2017 in the
complaint, the police mentioned that it took place on 20.07.2017 in the
para 10 of FIR. ExD.11 is the certified copy of the order of the Deputy
Commissioner of Police dated 30.08.2017 transferring the above case to
Ramamurthy Nagar P.S. on the basis of place of occurrence of offence as
per the request of the R.T.Nagar P.S. ExD.10 is the certified copy of FIR in
Cr.No.389/2017 dated 07.09.2017. Though the incident alleged to have
taken place on 20.02.2017 in the complaint, the R.T. Nagar police
mentioned that it took place on 20.07.2017 in the para 10 of FIR at ExD.9
and the said mistake is continued in ExD.10.
17 CC.16847/2017 (J)
21. ExD.12 is the certified copy of the legal notice dated
28.03.2017 issued by the accused to one Sathyabhama, proprietor of
Sathya Travels. It is stated in the notice that accused company lifted her 4
vehicles for loan default as per the instructions of finance company M/s. I
Tune Technologies Ltd. She filed case before Rammurthy Nagar P.S. against
the accused and his company. The accused issued three signed blank
cheques in favour of Sathyabahama as he was threatened by police. The
two cheques of company are bearing Nos.070407 and 070408 drawn on
SBI bank and one personal account cheque is bearing No.250892 drawn on
SBI bank. It is stated that the same was illegal and he asked Sathyabhama
to not to present the cheques at her whims and asked her to return the
cheques.
22. The accused also got examined one witness by name R.
Ekambaram. He entered the witness box and examined himself as DW.2.
He deposed that he knew the accused but not the complainant. He worked
as driver in Sathya Travels from 2016. He went to White field in Sathya
Travels vehicle bearing No.KA50 A2353 on 05.03.2017 and he parked it
near Bata Show Room for having meals but it was there when he retuned.
He intimated about it to Sathyabahama and she asked him to come stating
that complaint has to be lodged. They went to Ramamurthy Nagar P.S for
lodging the complaint. He came to know that other three vehicles were also
stolen. They gave the complaint. During investigation Sathyabhama told
that the vehicles were bought by availing loan from finance company. On
enquiry pollice came to know that as per the instructions of the finance
company, the accused lifted the cars. Police called accused and asked him
to return the vehicles. He told the police that he lifted the vehicles as per
the rules as instructed by the finance company. The police threatened him
18 CC.16847/2017 (J)
to register the case and arrest him. Thereafter the accused sought time to
talk with finance company. The accused came to police station again on
08.03.2017 and the police told him that he could not leave until he hand
over the vehicles. Police asked him to issue cheques as security fro return of
vehicles. The accused gave 3 blank signed cheques to the police and in turn
police gave them to Sathyabhama. He did not know anything else. The
evidence was given on 17.11.2021 and witness stated that accused met him
15 days ago near Malleshwaram Mantri Mall and requested him to depose
before the Court about the matter happened in police station. He produced
identity card issued by Sathya Travels as per ExD.14.
23. Before proceeding further, it is important to know that
whether the complainant is working as C.O.O. of DrWheelz Auto Services
Pvt Ltd. The complainant averred that she was appointed as C.O.O. of the
company without any formal letter or order of appointment. As per the
defence of the accused, she was commission agent. The counsel for the
accused cross examined PW.1 and it was elicited that she earlier worked in
IBM company and thereafter she was doing freelancer job. She got
appointment letter and salary slip from IBM. She was orally appointed in
Drwheelz company. She denied that no company would appoint any one
without written appointment letter. She denied that she had not worked in
the company. The counsel for the accused argued that the complainant
having appointed without there being any appointment order/letter and
having worked so many months without any salary is not believable.
24. In common practice any company would give appointment
letter before appointing anybody to the company. There are many other
formalities. The complainant would have made efforts to produce the
19 CC.16847/2017 (J)
documents to show that she was working in the company of the accused as
C.O.O., which is a higher post. No prudent man would join a company
without there being any appointment order/letter or he would work for
months without salary. It is hard to believe. However PW.1 produced
ExP.10, which is the certified copy of the judgment in CC.No.20291/2017.
As per ExD.10, it is clear that the complainant produced the copies of
emails as per ExP.18 in the said case for having worked in the company of
the accused. They were not produced in this case. However the Hon'ble XXI
ACMM., Bengaluru observed in the said judgment relying on ExP.18 in the
said case that the copies of the emails clearly disclose that the complainant
was working in the company of the accused. This itself is sufficient to prove
that she was working in the company of the accused. Further when she was
crossexamined by the counsel for the accused she explained that the
accused was her friend and colleague. She did not ask for job to the
accused instead the accused contacted her and requested her to do the job.
This explanation offered by the complainant appears to be satisfactory.
Therefore this Court is of the opinion that the complainant was working in
the company of the accused.
25. The counsel for the accused argued that the documents at
ExD.2 to 6 clearly disclose that the complainant is the commission agent.
The counsel for the complainant argue that the documents are created for
the purpose of defence and they are not believable. ExD.2 to 6 are the
documents do not show that complainant is commission agent. The alleged
visiting card of the complainant was produced as per ExD.2 to show that
she was old cars consultant. PW.1 was not cross examined in respect of
ExD.2 stating that it belongs to her and she gave it to the accused and no
suggestions were made in respect of it. The visiting cards can be printed by
20 CC.16847/2017 (J)
anybody. It has no value unless it is substantiated by some other evidence.
Therefore ExD.2 is not proved to be of the complainant. The invoices are
produced as per ExD.4 to 6 to show that the complainant was working as
commission agent. The accused stated that the complainant used to collect
commission by way of cash. This shows that there is no evidence to show
that the complainant is working as commission agent. The counsel for the
complainant crossexamined DW1 with respect to Ex.D.4 to D.6. It was
elicited in the crossexamination of DW1 that the transactions of the
company are recorded in the book of accounts. The name of the owner and
car number has to be mentioned in the invoice. He admitted that Ex.D.4 to
D.6 do not disclose the car numbers. He also admitted that the invoices
have to be mentioned in the book of accounts for the purpose of payment of
tax. He denied that Ex.D.4 to D.6 are fake invoices. On perusal of Ex.D.4 to
D.6, it is clear that they are the self serving documents of the accused and
no evidence is brought on record to prove Ex.D.4 to D.6. Mere marking is
not sufficient. He would have produced the book of accounts to
substantiate Ex.D.4 to D.6. Even otherwise Ex.D.4 is the invoice in the
name of complainant and the car repaired is the car of her father, which is
substantiated by Ex.D.13. It is the defence of the accused that Rs.1,00,000/
paid by the complainant to DrWheelz company is in respect of the repair of
car. However the date on Ex.D.4 is 29.09.2016 and amount of
Rs.1,00,000/ is paid on 05.10.2016. The tax invoice would have been
generated after making of payment. It cannot be said that the complainant
left the car of her father for repair on commission basis. Further there is no
evidence to show that the persons shown in Ex.D.5 and D.6 are the persons
referred by complainant. There is no evidence either to show that the
payments as per Ex.D.5 and D.6 were made to the company or there is
nexus between the complainant and the repair of cars of the persons
21 CC.16847/2017 (J)
mentioned in Ex.D.5 and D.6. Further PW1 was not suggested anything
about the accused having invoices as proof of her being commission agent
for the persons named in ExD.5 and 6. She was also not suggested that she
referred the persons mentioned Ex.D.5 and D.6 for repair work of the cars.
It is merely suggested that she was working as commission agent. It is not
hidden fact that a person running the business can generate any number of
invoices whether there is actual transaction or not. Therefore, the invoices
have to be substantiated or proved by adducing supporting evidence such
as book of accounts or entries in the bank account statement of the
company etc. The bank account statement of the DrWheelz company at
Ex.D.3 does not disclose anything about the said transactions and the
complainant being commission agent. Therefore it cannot be presumed on
the basis of Ex.D.4 to D.6 that the complainant is the commission agent.
Hence the defence of the accused that the complainant is commission agent
is not acceptable.
26. The counsel for the accused argued that the complainant is old
car consultant and the amount deposited by her to the account of the
accused is in respect of the purchase of old car i.e. BMW car and it is not
loan amount. The counsel for the complainant argued that the ExD.7 is
created for the purpose of defence and it has no evidentiary value unless
the author of the document is examined or supporting oral or documentary
evidence is lead. It is admitted fact that as per Ex.P.6, which is the Bank
statement of the complainant of her account in the Canara Bank, the
complainant transferred Rs.4,06,850/ on 26.04.2016 and Rs.60,000/ on
20.05.2016 to the accused. The letter at Ex.D.7 is produced to show that
the complainant is dealing with the sale of second hand cars and used to
take commission. When DW1 crossexamined in respect of Ex.D.7, he
22 CC.16847/2017 (J)
answered that the BMW car purchase was shown in the book of accounts.
The car was sold through the company. The tax invoice of the company
shows only commission amount and not the transaction amount. The tax
invoice does not show the details of the purchase but the date of selling the
vehicle is shown. He can produce the document to show that he has been
paid commission for selling the BMW car. The value of the car was around
Rs.4,60,000/ and the amount was given through bank transaction. Ex.D.7
is the letter dated 24.05.2018 issued by Akhila Karthi, the owner of BMW
3200 car bearing No.KA53 M3535, at the request of the accused. It is
mentioned in Ex.D.7 that she entrusted accused to sell her car and the
accused credited Rs.4,00,000/ on 27.04.2016 and Rs.50,000/ on
21.05.2016 after selling the said car. There is no reference of the
complainant in the said letter. There is also no reference of the purchaser
by name Afuk as alleged by the accused. There is no document pertaining
to DrWheelz company for having done the said transaction. Ex.D.7 was
given by Akhila Karthi on 24.05.2018 at the request of accused whereas the
transaction was made in April 2016. There is a gap of two years. Ex.D.7 is
also self serving statement of the accused. There is no piece of document to
substantiate or prove the transaction as alleged by the accused or as
mentioned in Ex.D.7. There is also no document for having taken the
commission for selling old car by DrWheelz company or for having paid
commission to the complainant for having brought the purchaser by name
Afuk as alleged by the accused. He stated that he has documents and he
would produce. However no documents have been produced. The
withholding of documents lead to draw presumption that either there are
no such documents or the documents if produced would go against the
accused. It is also pertinent to note that the dates are mentioned in the
ExD.7 in such a way that they show nexus with the BMW car transaction
23 CC.16847/2017 (J)
and the amount deposited by the complainant but there are no documents
to support ExD.7 and Akhila Karthi was not examined as witness to prove
ExD.7. Therefore it appears that taking the letter from Akhila Karthi is an
after thought to escape from the liability.
27. It is the specific defence of the accused that the cheque in
question and the two cheques of the company of the accused were given to
Sathyabhama and the cheques were blank signed cheques. The cheques
were given as the police of Ramamurthy Nagar P.S threatened him to file
the case arrest him for lifting the vehicles of Sathyabhama as per the
instruction of finance company by name I Tune Technologies Pvt. Ltd., The
Sathyabhama and complainant misused the said cheques. The counsel for
the accused argued that the cheques were not all issued to the complainant.
They were issued to Satyabhama. The legal notice was issued to
Satyabhama as per ExD.12 shows that the cheques were misused by the
complainant in collusion with her friend Satyabahama. The counsel for the
complainant argued that the defence is bald defence and there is no
evidence to show that the accused gave cheques to Satyabhama in
connection with lifting of her 4 vehicles in the police station under threat.
He relied on the judgment of the Hon'ble High Court of Karnataka in the
case of Nasurulla Khan Vs. Smt. K. Devi reported in 2021 (2) Kar. L.R
223, wherein it was observed that the defence of the accused was that he had
lost the cheques, which were duly signed and kept blank by him in his house
and the same has come in the hands of the complainant. Except such a bald
defence, nothing has been placed by the accused to show that he had kept such
cheques in his house and the same were misused by the complainant.
Admittedly, he has not lodged any police complaint in that regard nor even
sent any notice demanding the return of the cheques. It is not his case that the
24 CC.16847/2017 (J)
complainant had visited his house at any point of time and at that time, she
had stolen those cheques without his knowledge or notice. Hence the defence of
the accused is not believable. He also relied on the judgment of the Hon'ble
High Court of Karnataka in the case of Seetharama Gouda A. Vs. Isubu in
Crl.R.P.No.572/215 dated 12.08.2020, wherein it was observed that
whenever the special plea is taken by the accused apart from denial it is
incumbent upon him to establish the special plea.It is clear from the decision
that merely taking the defence is not sufficient but the accused has to prove
his defence by adducing evidence. The accused has to explain the passing of
cheques into the hands of the complainant.
28. In order to prove the said fact, the accused produced Ex.D.12.
It is the notice dated 28.03.2017 issued by the accused to Sathyabhama to
not to misuse the cheques and return back the cheques. It was elicited in
the cross examination of DW.1 that I Tune Technologies Pvt. Ltd. instructed
him in writing to lift 4 vehicles. He has the documents to show the lifting of
4 vehicles of Sathyabhama. He has been paid by the I Tune Technologies
Pvt. Ltd. for lifting of the vehicles. He can produce the said documents. He
did not take any action against Sathyabhama for having forcibly taken 3
cheques from him in the police station. He did not take any action against
Sathyabhama and PSI of Ramamurthy Nagar P.S. for having forced to issue
cheques to Sathyabhama. He did not take any action against the
complainant for having misused of cheques except giving alleged notice to
Sathyabhama as per ExD.12.
29. On perusal of the complaint, it is clear that the cheque is dated
15.03.2017. It was presented for encashment for the first time in March
2017 and it was returned dishonored on 24.03.2017. The accused had
25 CC.16847/2017 (J)
knowledge of dishonour. The notice to Sathyabhama was issued on
28.03.2017 but it has no reference as to the dishonor of cheque on
24.03.2017. It appears that issuing notice to Sathyabhama is an after
thought. The cheque was presented for encashment for the second time in
the month of April 2017 and it was returned dishonored on 26.04.2017. If
at all the notice as per Ex.D.12 was issued to Sathyabhama, it means that
he had apprehension that the cheques might be misused, but even then he
did not issue stop payment instructions to the Bank stating that the cheques
were forcibly taken in the police station by threatening him and payment
should be stopped. Moreover the accused did not produce the postal receipt
for having sent notice at Ex.D.12 to Sathyabhama and postal
acknowledgement for having served the notice on her. When DW1 was
crossexamined in respect of service of notice at Ex.D.12, he answered that
he had documents to show that the notice served on Sathyabhama and he
can produce it. He also stated that he had all the documents in respect of
lifting of vehicles of Satyabhama and he can produce them. However no
such documents is produced to substantiate the said fact. The with holding
of documents lead to draw presumption that either there are no such
documents or if produced would go against him. Therefore Ex.D.12 would
not come into the aid of accused to prove his defence.
30. He also got examined one witness as DW2 in support of his
defence. However during the crossexamination of DW2 it was elicited
that he saw the accused for the first time on 8 th day in the year 2017. He
could not say the exact month. However he stated in the examinationin
chief that he saw the accused on 5.03.2017 and again on 8.03.2017. It is
also clear from the examinationinchief of DW2 that he met the accused
near Malleshwaram Mantri Mall 15 days prior to the date of evidence i.e.,
26 CC.16847/2017 (J)
17.11.2021. It is almost after lapse 4 ½ years. DW2 met the accused and
the accused requested him to give evidence and he immediately agreed. No
prudent man would agree to give evidence in favour of a person whom he
met after lapse of 4 ½ years merely for requesting. It is against the rationale
of prudent man and it cannot be believable and acceptable. Further there is
contradiction in the evidence of DW.2. He stated in examination in chief
that he went to the police station along with Satyabhama on 05.03.2017
and the accused came there with his friend. Even though it is considered
that the accused issued signed blank cheques to Sathyabhama in the police
station due to the threatening by the police and out of fear of arrest,
nothing would have prevented him to take action against the PSI of
Ramamurthy Nagar PS and Sathyabhama. No action was taken by the
accused. The accused even did not bother to issue stop payment
instructions to the Bank. Therefore the version of the accused cannot be
believable. Further it was merely suggested to PW1 that she is the friend of
Sathyabhama, which she denied. There is no oral or documentary evidence
on record to prove the connection between Sathyabhama and complainant.
He would have taken steps to summon Sathyabhama in order to
substantiate his defence. Therefore the defence of the accused is not
probable and acceptable.
31. The counsel for the accused argued that the complainant
mentioned in the complaint that she had given loan of Rs.9,62,000/ but is
is not made clear whether she gave loan amount to the 'DrWheelz' company
or to the accused. The notice was given to accused individually but the
complaint averments also show that the loan was given to the company. It
is not clarified by the complainant as to what was the necessity for the her
to raise a loan from HSBC bank to give it to the accused. The complainant
27 CC.16847/2017 (J)
produced the bank statement of her account as per Ex.P.6 but she had no
enough money to give loan amount. Except the transferred amounts, all
other amounts are all below Rs.2000/. On the other hand the counsel for
the complainant argued that the the amounts were transferred through the
account and the accused is disputing that the said amounts are not loan
amounts, then he has to prove his defence. The burden is on the accused to
prove his defence.
32. The counsel for the accused in order to elicit that the
complainant has no financial capacity to pay the amount of Rs.9,62,000/
at relevant point of time, asked several questions and also made
suggestions. It was elicited in the crossexamination of PW1 that the
accused sought for financial help of Rs.9,62,000/ as the Director of the
company. She could not say as to whether the accused took the amount for
his personal use or for the purpose of business of the company. The accused
did not give any receipts for having taken the amount. She did not get
execute loan agreement from the accused. She took personal loan from
HSBC Bank by mentioning that she was taking loan for her personal
reasons. She denied that she took loan for personal reason and she did not
give amount to the accused. She gave amount to the accused on
26.04.2016. She took loan of Rs.4,79,000/ from HSBC Bank on the said
day. The accused also took Rs.4,83,000/ by way of cash. She withdrew the
cash from the Bank and gave it to the accused. There are entries in the bank
statement for withdrawal of amounts. She could not remember the dates on
which she paid amount by way of cash. She did not obtain any receipts for
having given amounts to the accused by way of cash.
28 CC.16847/2017 (J)
33. However for the reason that no documents have been executed
to show that amounts were given to the accused on various dates, the claim
of the complainant can not be rejected outrightly more particularly when
she has proved that she arranged the amount by borrowing the amount
from HSBC bank, which is clear from bank statement at ExP.6 and loan
documents at Ex.P.8. The ExP.6 also makes it clear that the amounts have
been transferred to the accused through account. The amount was also
transferred to the company of the accused. Some amount was transferred
through the bank and some amount was given by way of cash. She clearly
stated in her cross examination that the amount is withdrawn from banks
and given to the accused. The accused took the specific stand that the
amount transferred by the complainant to his personal account are not loan
amounts but old car purchase amounts. The accused produced letter of car
owner Akhila Karthi as per ExD.7 stating that the amounts transferred were
not loan amounts and they were the amounts for purchase of second hand
BMW car. However he failed to prove the said aspect. Therefore there is no
contrary evidence on record and the said evidence remains unrebutted. The
accused failed to prove that the transferred amounts were not loan and
they are amounts transferred for the purchase of second hand BMW car. On
perusal of ExP.6 it is clear that the complainant has lakhs together amount
in her account at relevant point of time. She had more than 2 lakhs balance
during that period as per ExP.6. However the counsel for the accused
argued that she had only around 2,000/ balance in her account except
loan from HSBC bank. The argument is contrary to the evidence on record
and therefore not acceptable.
34. Moreover, the accused admitted the signature on the cheque at
ExP.1. Therefore the presumption arises in favour of the complainant. The
29 CC.16847/2017 (J)
admission attracts the ratio laid down by the Hon'ble Supreme Court of
India in its decisions reported in 2011 (11) SCC 441 - Rangappa V/s
Mohan and 2015 (8) SCC 378 - T.Vasanthakumar V/s.Vijayakumari.
The ratio is that the cheque shall be presumed to be for consideration
unless and until the court forms a belief that the consideration does not
exist or considers the nonexistence of consideration so probable that a
prudent man ought under such circumstances act upon the supposition that
it does not exist.
35. The counsel for the accused also relied on the judgment of
Hon'ble Supreme Court of India in the case of Rohit Bhai Jeevanlal Patel
Vs. State of Gujarath and another reported in (2019) 18 SCC 106,
wherein the Hon'ble Supreme Court observed at para No.14 and 17 as
under:
14. So far the question of existence of basic ingredients for
drawing of presumption under Sections 118 and 139 the NI Act
is concerned, apparent it is that the accusedappellant could not
deny his signature on the cheques in question that had been
drawn in favour of the complainant on a bank account
maintained by the accused for a sum of Rs. 3 lakhs each. The
said cheques were presented to the Bank concerned within the
period of their validity and were returned unpaid for the reason
of either the balance being insufficient or the account being
closed. All the basic ingredients of Section 138 as also of
Sections 118 and 139 are apparent on the face of the record.
The Trial Court had also consciously taken note of these facts
30 CC.16847/2017 (J)
and had drawn the requisite presumption. Therefore, it is
required to be presumed that the cheques in question were
drawn for consideration and the holder of the cheques i.e., the
complainant received the same in discharge of an existing debt.
The onus, therefore, shifts on the accusedappellant to establish
a probable defence so as to rebut such a presumption.
17. In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the Trial Court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan
to the accused and want of examination of relevant witnesses
who allegedly extended him money for advancing it to the
accused. This approach of the Trial Court had been at variance
with the principles of presumption in law. After such
presumption, the onus shifted to the accused and unless the
accused had discharged the onus by bringing on record such
facts and circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the
complainant's case could not have been raised for want of
evidence regarding the source of funds for advancing loan to the
accusedappellant. The aspect relevant for consideration had
been as to whether the accusedappellant has brought on record
such facts/material/circumstances which could be of a
reasonably probable defence.
It is clear from the aforesaid decision that once the presumption is
raised U/s 139 of N.I.Act, the source of income of the complainant could
31 CC.16847/2017 (J)
not be questioned unless the accused discharges the onus by bringing on
record such facts and circumstances as to show the preponderance of
probabilities tilting in his favour.
36. The Hon'ble Supreme Court of India in the case of
Rangappa Vs. Mohan reported in 2011 (11) SCC 441 also held that in the
absence of compelling justifications, reverse onus clauses usually imposed an
evidentiary burden and not persuasive burden. Keeping this in view, it is
settled position that when an accused has to rebut the presumption U/s.139,
the standard of proof for doing so is that of preponderance of probabilities.
Therefore, if the accused is able to raise probable defence which creates the
doubt about existence of legally enforceable debt or liability, the prosecution
can fail. The accused can rely on the material submitted by the complainant in
order to raise such defence and it is conceivable that in some cases the accused
may not need to adduce evidence of his/her own. Therefore though the
accused failed to prove his specific defence, he can still rely on the evidence
of the complainant to rebut the presumptions by pointing out the infirmities
in the case of the complainant, which creates doubt on the case of the
complainant. Further the Hon'ble Supreme Court of India in the case of
Basalingappa Vs. Mudibasappa reported in AIR 2019 SC 1983 held that
the non mentioning of the date of issuance of cheque by the complainant in
the complaint as well as in the evidence and the complainant not satisfactorily
explaining the contradiction in the complaint visavis his examination in chief
and crossexamination and his failure to prove the financial capacity to
advance the substantial amount, the accused entitled for acquittal. It was also
held that whereas prosecution must prove the guilt of an accused beyond all
reasonable doubt, the standard of proof so as to prove a defence on the part of
an accused is "preponderance of probabilities". Inference of preponderance of
32 CC.16847/2017 (J)
probabilities can be drawn not only from the materials brought on record by
the parties but also by reference to the circumstances upon which he relies."
37. However the Hon'ble Supreme Court of India in its latest case
of M/s. Kalamani Tex v. P. Balasubramanian reported in 2021 SCC
OnLine SC 75, wherein the Hon'ble Supreme Court observed at para No.14
to 16 as under:
14. Adverting to the case in hand, we find on a plain reading
of its Judgment that the trial Court completely overlooked the
provisions and failed to appreciate the statutory presumption
drawn under Section 118 and Section 139 of NIA. The Statute
mandates that once the signature(s) of an accused on the
cheque/negotiable instrument are established, then these 'reverse
onus' clauses become operative. In such a situation, the
obligation shifts upon the accused to discharge the presumption
imposed upon him. This point of law has been crystalized by this
Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat, (2019) 18
SCC 106 in the following words:
"In the case at hand, even after purportedly drawing the
presumption under Section 139 of the NI Act, the trial Court
proceeded to question the want of evidence on the part of the
complainant as regards the source of funds for advancing loan to
the accused and want of examination of relevant witnesses who
allegedly extended him money for advancing it to the accused.
This approach of the Trial Court had been at variance with the
33 CC.16847/2017 (J)
principles of presumption in law. After such presumption, the
onus shifted to the accused and unless the accused had discharged
the onus by bringing on record such facts and circumstances as to
show the preponderance of probabilities tilting in his favour, any
doubt on the complainant's case could not have been raised for
want of evidence regarding the source of funds for advancing
loan to the appellantaccused....."
15. Once the 2nd Appellant had admitted his signatures
on the cheque and the Deed, the trial Court ought to have
presumed that the cheque was issued as consideration for a
legally enforceable debt. The trial Court fell in error when it
called upon the ComplainantRespondent to explain the
circumstances under which the appellants were liable to pay.
Such approach of the Trial Court was directly in the teeth of the
established legal position as discussed above, and amounts to a
patent error of law.
16. No doubt, and as correctly argued by senior Counsel
for the appellants, the presumptions raised under Section 118
and Section 139 are rebuttable in nature. As held in
M.S.Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39,
which was relied upon in Basalingappa (supra), a probable
defence needs to be raised, which must meet the standard of
"preponderance of probability", and not mere possibility. These
principles were also affirmed in the case of Kumar Exports
34 CC.16847/2017 (J)
(supra), wherein it was further held that a bare denial of passing
of consideration would not aid the case of accused.
Therefore it is clear from the above judgments that the accused has
to raise a probable defence and prove it by adducing evidence, which must
meet the standard of preponderance of probabilities. Unless the same has
been done, doubt can not be raised on the case of the complainant. The
accused utterly failed to prove his specific defences and he also failed to
prove that there was no legally enforceable debt.
38. The counsel for the accused argued that the complainant
suppressed the material facts. She did not disclose in the complaint that she
had received other two cheques of the company of the accused and other
case is pending before Hon'ble XXI ACMM, Bengaluru in
CC.No.20291/2017. The accused produced and marked the complaint in
CC.No.20291/2017 as Ex.D.1 in this case. The complaints in both the cases
are similar and identical. In both the complaints, the complainant did not
disclose the place, date and time of obtaining the cheques in question from
the accused. Therefore it could well be presumed that all the three cheques
were not obtained by her from the accused. Mere custody of cheque leaves
and the dishonour of the same is not enough for a complainant to maintain
a cheque bounce case. The complainant needs to setup a clear and specific
case for herself to establish the legal liability. In the case on hand, the link
of cheques in question and legal liability is missing due to the vague
complaint allegations. So, this complaint on the basis of her statements and
allegations cannot be believed at all. The complainant produced ExP.10,
which is certified copy of the judgment in CC.No.20291/2017. As per the
said judgment the Court comes to the conclusion that the accused issued
35 CC.16847/2017 (J)
the cheques for legally enforceable debts. However the accused was
acquitted only on the technical ground that the company of the accused
was the drawer of the cheques and neither the notice was sent to the
company nor it was arrayed as accused in the proceedings. The evidence on
record shows that the complainant has transferred the amount to the
company as well as individual account of the accused. Two separate cases
were filed. Though it is not pleaded in the complaint about the another case
being filed by her against the accused for dishonour of other two cheques,
the documents were on record to show that there was another case and
PW.1 also admitted that she filed another case against the accused.
Therefore it does not make much difference. As far as issuance of cheques
are concerned, there are some inconsistencies in the evidence of PW.1,
however they are not fatal to the case of the complainant. The accused took
specific defences about transfer of the amounts by the complainant to his
account and the account of his company and the issuance of the cheques
but he failed to prove the same. The accused has to explain how his cheque
went to the possession of the complainant by taking probable defence and
prove it by adducing evidence, which should meet the standard of
preponderance of probabilities. However he failed to do so and therefore no
doubt can be raised on the case of the complainant even though there are
some inconsistencies in the case of the complainant.
39. The accused also took defence stating that the complainant has
manipulated the cheque and the writing on the cheque. It is admitted by
the accused that he signed the cheque in question. As per Section 20 of the
N.I.Act, if the person signs and delivers Negotiable Instrument and it is left
incomplete and thereby he authorizes the holder to complete the
Negotiable Instrument and thereby he is liable for the amount mentioned in
36 CC.16847/2017 (J)
the Negotiable Instrument. Therefore, the defence of the accused is not
tenable. Further in view of the Judgment rendered by the Hon'ble
Supreme Court of lndia in its Criminal Appeal No.230231 of 2019 - Bir
Singh V/s. Mukesh Kumar also the above defence is not tenable. The para
No.38 and 40 of the said Judgment are extracted and the paragraphs reads
thus:
38. If a signed blank cheque is voluntarily
presented to a payee, towards some payment, the
payee may fill up the amount and other
particulars. This in itself would not invalidate the
cheque. The onus would still be on the accused to
prove that the cheque was not in discharge of a
debt or liability by adducing evidence.
40. Even a blank cheque leaf, voluntarily
singed and handed over by the accused, which is
towards some payment, would attract presumption
under Section 139 of the Negotiable Instruments
Act, in the absence of any cogent evidence to show
that the cheque was not issued in discharge of a
debt.
In the case on hand no evidence was brought on record to show that
the cheque was not issued for the discharge of debt or liability. Therefore
the defence of the accused is not tenable.
40. The counsel for the accused also argued that the complainant
after filing cheque bounce case, viz, CC.No.20291/2017 against the accused
herein on 22.07.2017, she went to J.C.Nagar Police in the evening and has
37 CC.16847/2017 (J)
filed an assault complaint against this accused herein. The J.C.Nagar Police
booked one FIR, vide, FIR No.214/2017 dated 22.07.2017 against the
accused herein with IPC Sections 341, 504 and 323. This act of complainant
shows that she has ulterior motives against the accused. No complainant
would visit office or house of the accused after filing two cheque bounce
cases against him. This shows that the complainant wanted to harass the
accused and filed false cases against him, after acquiring custody of the
cheque leaves.
41. However on perusal of the documents at ExD.8 to 11, they
show the different thing. ExD.8 is the certified copy of the complaint filed
by the complainant before the R.T.Nagar P.S. It is alleged in the complaint
that when she asked the accused to repay the loan amount of Rs.9,62,000/
on 20.02.2017, he restrained her, abused her in filthy language and
assaulted her in the office premises of the accused company. It shows that
the incident took place in February and not in July. ExD.9 is the certified
copy of FIR in Cr.No.214/2017 dated 22.07.2017. Though the incident
alleged to have taken place on 20.02.2017 in the complaint, the police
mentioned that it took place on 20.07.2017 in the para 10 of FIR. ExD.11 is
the certified copy of the order of the Deputy Commissioner of Police dated
30.08.2017 transferring the above case to Ramamurthy Nagar P.S. on the
basis of place of occurrence of offence as per the request of the R.T.Nagar
P.S. ExD.10 is the certified copy of FIR in Cr.No.389/2017 dated
07.09.2017. Though the incident alleged to have taken place on 20.02.2017
in the complaint, the R.T. Nagar police mentioned that it took place on
20.07.2017 in the para 10 of FIR at ExD.9 and the said mistake is continued
in ExD.10. Therefore complainant visited the office of the accused in
February and not in July after the filing of cheque bounce cases as argued
38 CC.16847/2017 (J)
by the counsel for the accused. Therefore the argument of the counsel for
the accused is not tenable.
42. For the reasons mentioned herein above, it is crystallized that
the accused has utterly failed to prove that there was no existence of legally
enforceable debt between him and the complainant at the given point of
time and he has not at all issued the instant cheque towards the discharge
of legally enforceable debt of Rs.5,58,000/. Under the circumstances, it
can be gathered that, the accused has failed to rebut the statutory
presumptions U/s.118(a) & (b) and 139 of the N.I.Act. On the other hand
the complainant proved that she lent the loan; the cheques were issued in
discharge of legally recoverable debt; the cheques were dishonoured for
insufficiency of funds in the account maintained by the accused and the
legal notice was sent to the last known correct address of the accused.
Accordingly the accused is found guilty for the offence punishable U/s.138
of the N.I.Act. Hence, I proceed to answer the Point No.1 in Affirmative and
Point No.2 in the Negative.
43. Point No.3 : The transactions are pertaining to the year from
2016 i.e. the payments were made during that period. The Court is
empowered to impose the fine up to double the amount of the cheque.
However considering the facts and circumstances and in view of the reasons
assigned on Point No.1 and 2 imposing nominal bank interest on the
cheque amount would suffice. Hence, I proceed to pass the following:
ORDER
As per the provisions of Sec.255(2) Cr.P.C. the accused is hereby convicted for the offence punishable u/s.138 of NI 39 CC.16847/2017 (J) Act, 1881 and sentenced to pay fine of Rs.6,85,000/ (Rupees Six Lakhs Eighty Five Thousand Only). On deposit of fine amount the complainant is entitled for compensation of Rs.6,75,000/ (Rupees Six Lakhs Seventy Five Thousand only). The remaining balance amount of Rs.10,000/ is to be forfeited to the State.
In default of payment of the fine amount accused shall undergo simple imprisonment for three months.
The personal bond executed by the accused is hereby stands cancelled and cash surety of Rs.6,000/ furnished by the accused shall be refunded to him after expiry of appeal period.
Copy of the judgment shall be furnished to the accused at free of cost.
(Dictated to the Stenographer, transcript thereof is computerized and printout taken by him, is verified and then pronounced by me in Open Court on this the 21th day of February2022.) (Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.
40 CC.16847/2017 (J) ANNEXURE Witnesses examined for the Complainant: PW.1 Priyanka Sadasivan Documents marked for the Complainant: Ex.P.1. Cheque.
Ex.P.1a Signature of the accused.
Ex.P.2 Bank endorsement.
Ex.P.3 Postal Receipt.
Ex.P.4 Postal Envelope.
Ex.P.5 Legal Notice.
Ex.P.6 Canara Bank Account Extract.
Ex.P.7 Certified copy of F.I.R.
Ex.P.8 Loan documents of HSBC bank.
Ex.P.9 Certified Copy of Appeal Memorandum.
Ex.P.10 Certified copy of Ordersheet in
CC.No.20291/2017.
Witnesses examined For Defence: DW1 Balaji Mohan.
DW2 R.Ekambaram [ Documents marked for Defence: Ex.D.1 Certified copy of the complaint in CC.No.20291/2017.
Ex.D.2 Certified copy of visiting card. Ex.D.3 Certified copy of SBI Account statement of company of the accused. Ex.D.4 to D.6 Certified copy of Three Invoices. Ex.D.7 Certified copy of the letter dated 24.05.2018 issued by Akhila Karthi to the accused. Ex.D.8 Certified copy of the police complaint given by complainant in RT Nagar P.S. 41 CC.16847/2017 (J) Ex.D.9 Certified copy of the FIR in the R.T.Nagar P.S. Ex.D.10 Certified copy of the FIR in the Ramamurthy Nagar P.S. Ex.D.11 Certified copy of the letter dated 30.08.2012 given by ACP.
Ex.D.12 Certified copy of the legal notice dated 28.03.2017 issued by the accused to Sathyabhama.
Ex.D.13 Certified copy of the BExtract issued by RTO Bengaluru.
Ex.D.14 Identity Card of DW.2 R. Ekambaram.
(Lokesh Dhanapal Havale) XV Addl. CMM., Bangalore.